Court Bars Suspicionless Phone Search For International Travelers As a Violation Of The Fourth Amendment

On November 12, the District Court for the District of Massachusetts ruled in Alasaad v. Nielsen, 17-cv-11730-DJC to prevent the suspicionless search of phones for international travelers. The plaintiffs are ten U.S. citizens and one lawful permanent resident, who alleged that the government’s conduct of searching their electronic devices at ports of entry to the United States and in some cases confiscating the devices pursuant to Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) policies violates the Fourth Amendment. They claimed the government violated their constitutional rights by conducting searches and seizures “of electronic devices absent a warrant supported by probable cause.”

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The border search is an exception to the warrant requirement.

According to the opinion, “Under the CBP and ICE policies, a basic search and an advanced search differ only in the equipment used to perform the search and certain types of data that may be accessed with that equipment, but otherwise both implicate the same privacy concerns. Basic searches, defined only as any search of an electronic device that is not an advanced search, can access content from space physically resident on a device using the devices’ native operating system.”

Concerns were raised by Alasaad and Merchant over CBP officers, especially male officers, viewing photographs of them and their daughters without their respective headscarves. Others were concerned about officers seeing work related content. They claimed their data was retained through the officers’ notes of the content on their devices. They stated their devices were searched without individualized suspicion.

Some of the Plaintiffs have had their devices searched on multiple occasions. The court concluded “that the risk of a future search subject to ICE and CBP policies was higher for Plaintiffs than for the general population… ‘Plaintiffs have plausibly alleged that they face a substantial risk of future harm from Defendants’ ongoing enforcement of their border electronics search policies.’”

The Electronic Frontier Foundation quickly vocalized their support for this court decision. “Because of the ruling, travelers will be able to ‘cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,’ Sophia Cope, EFF Senior Staff Attorney, said.

Alasaad et al. seek to expunge data collected from their devices; retaining the information could lead to their ongoing and future harm since the data can be accessed by officers.

The ruling stated, “[T]he Court declares that the CBP and ICE policies for “basic” and “advanced” searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband for both such classes of non-cursory searches and/or seizure of electronic devices; and that the non-cursory searches and/or seizures of plaintiffs’ electronic devices, without such reasonable suspicion, violated the Fourth Amendment.”

“Although governmental interests are paramount at the border, where such non-cursory searches—even ‘basic’ searches as broadly defined under CBP and ICE policies as well as the ‘advanced’ searches of plaintiffs’ electronic devices—amount to non-routine searches, they require reasonable suspicion that the devices contain contraband,” Judge Casper wrote.

The court affirmed that the searches violated their Fourth Amendment rights, but denied their requests for an injunction, which would have caused stricter limits on the government’s ability for device search and seizure.